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Judge tosses Charter challenge against cops posing as journalists

Shawn Brant was at the 2007 Day of Action in the Tyendinaga Mohawk territory when a plainclothes officer conducting surveillance on demonstrators during the aboriginal protest posed as member of the media to gain access to an area where only media was allowed.
After that incident, Brant became leery of media because he was worried the reporters could be police officers, said Peter Rosenthal, Brant’s lawyer and an intervenor in the case.
(TOM HANSON / CP)

Two OPP officers working for the make-believe news company “United Press Associates” spied on protesters at Ipperwash Provincial Park.

In another case, a provincial cop posed as a reporter to gain better access to demonstrators at another aboriginal protest.

In a third, a female OPP officer pretended to be an independent author to pick the brain of a convicted killer.

Media groups went to court against the police pretenders, arguing that such actions violate the Constitution by creating a chilling effect on freedom of the press. The deceptive practice, the journalists argued, could threaten their work because it might cause suspicion about who they really are. It could also make it more difficult for reporters to earn the trust of sources, meaning they might lose out on getting vital information in the public interest, the groups argued.

But in a recent decision, Ontario Superior Justice Benjamin Glustein dismissed the application brought forward by the CBC, Canadian Journalists for Free Expression and the Radio-Television News Directors Association of Canada (RTNDA), which sought a declaration from the court that cops pretending to be journalists was an unjustified violation of the Charter of Rights and Freedoms.

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“The case is about what impact this has on the public and sources for the media sources who are, by definition, in conflict with the law and reluctant to speak with police officers,” said Philip Tunley, the lawyer representing the media group.

Glustein disagreed, tossing the application in part because he found no large-scale practice. “It cannot be considered a ‘real’ practice and, as such, I do not address the theoretical constitutional validity of the issue,” he wrote in his ruling.

One example involves a now-notorious incident at Ipperwash Provincial Park in 1995, when two officers filming protesters falsely claimed they were journalists. It was the first time it became apparent that a Canadian police force was capable of using the tactic, as opposed to American police, Tunley said.

The OPP officers were doing plainclothes surveillance of protesters, and in response to a question from someone amid a group of journalists, one replied that he was working for “U.P.A.,” which he said stood for United Press Associates.

Glustein wrote that he didn’t believe the episode proves the officers were posing as journalists, because the officer’s response “was an on-the-spot . . . reaction to a series of questions.” It was not part of a pre-planned undercover operation, the judge said.

Tunley and his clients expressed disappointment with the ruling, saying Glustein was overly technical and did not take a step back to examine the larger issue and the main questions the case raises about freedom of expression.

The third case happened at the 2007 Day of Action in the Tyendinaga Mohawk territory in 2007, when a plainclothes officer conducting surveillance on demonstrators during the aboriginal protest posed as member of the media to gain access to an area where only media were allowed.

After that, protester Shawn Brant became leery of media because he was worried the reporters could be police officers, said Peter Rosenthal, Brant’s lawyer and intervenor in the case.

“He became more wary. It made him very cautious — it has that chilling effect,” Rosenthal said, adding that he didn’t believe the judge adequately addressed that aspect.

Brendan Crawley, spokesperson for the Attorney General, said in an email that “the Ontario Provincial Police used investigative techniques that were in accordance with the law and do not infringe freedom of expression under the Charter.”

During the trial, Tunley asked the OPP if its officers had employed the tactic at the G20 Summit in Toronto in 2010. Court heard the OPP did not, but that RCMP officers did pose as reporters at the summit.

Tunley said the media groups are now considering whether to appeal.

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